Court of Appeals of Missouri, Southern District, First Division
FROM THE CIRCUIT COURT OF TANEY COUNTY Honorable Larry G.
Luna, Special Judge.
JEFFREY W. BATES, P.J.
landlord-tenant dispute, the trial court found in favor of
Morris Branson Theatre, LLC (Landlord) on its action seeking
damages for breach of a lease agreement (Lease) by Cindy Lee,
LLC (Tenant). The trial court found against Tenant on its
affirmative defense that Tenant was justified in terminating
the Lease because Landlord failed to substantially complete
certain repairs within a six-month period.
presents two points on appeal. In Point 1, Tenant contends
the trial court's finding on Tenant's affirmative
defense is not supported by substantial evidence. In Point 2,
Tenant contends the trial court's finding on Tenant's
affirmative defense is against the weight of the evidence.
Because Tenant bore the burden of proving its affirmative
defense and failed to do so, neither point has merit.
Accordingly, we affirm the judgment.
and Procedural Background
September 2011, the parties executed the Lease. Tenant agreed
to pay Landlord monthly rent to occupy restaurant and club
space in a building adjacent to the Dick Clark Theater in
Branson, Missouri. The term of the lease ran from September
30, 2011 through December 31, 2014. Rent was due on the first
of each month, commencing on April 1, 2012. In relevant part,
Paragraph 17 of the Lease (hereinafter referred to as
Paragraph 17) stated:
FIRE OR OTHER CASUALTY. In the event the
Premises is totally destroyed or partially damaged by fire or
other casualty making it inoperable for a period of longer
than ninety (90) days, either party may, at is option,
terminate this Agreement…. In the event the parties do
not so terminate this Lease, then, subject to the following
provisions of this Paragraph 17, Landlord may proceed as soon
as is reasonably practicable, at its sole cost and expense to
the extent of insurance proceeds available, if any, to repair
and restore the Premises to substantially the same condition
as that before the damage occurred…. In the event
Landlord does not complete such repair and restoration within
six (6) months from the date of damage or destruction, Tenant
may terminate this Agreement. …
café and club (the Café) opened by Tenant was
damaged by a tornado on February 29, 2012.
repairs, the Café re-opened on April 20, 2012. Except
for "a few" days, the Café operated
continuously from that date through August 25, 2012. On that
day, there was a leak in the Café's kitchen area.
A roofing company hired by Landlord immediately began work on
the leak. Tenant paid the August rent when due. On August 29,
2012, which was six months from the date of the tornado
damage, Tenant submitted a letter to Landlord "electing
to terminate" under "[P]aragraph 17." Tenant
tendered prorated rent through September 10, 2012, vacated
the premises as of that date and paid no further rent to
mid-September 2012, Landlord filed suit against Tenant.
Landlord's petition sought damages based upon
Tenant's alleged breach of the Lease "by failing to
pay rent when due." Tenant's answer denied the
allegation and pled as an affirmative defense that Tenant
"properly terminated" the Lease pursuant to
two bench trials in this matter were held. After the first
bench trial, the trial court found in favor of Tenant.
Landlord appealed. This Court reversed and remanded for the
trial court to make a factual determination as to
"[w]hether Landlord failed to repair and restore the
Premises per the requirements of Paragraph 17[.]"
Morris Branson Theatre, LLC v. Cindy Lee, LLC, 472
S.W.3d 635, 642 (Mo. App. 2015). After the second bench
trial, the trial court found in favor of Landlord. The trial
court ruled against Tenant on its affirmative defense,
finding that "the repairs to the roof were substantially
complete on or before August 29, 2012." This appeal
court-tried case, our review is governed by Rule 84.13(d) and
Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc
1976). In Re Bell, 481 S.W.3d 855,
858-59 (Mo. App. 2016). The judgment will be affirmed unless
there is no substantial evidence to support it, it is against
the weight of the evidence, or it erroneously declares or
applies the law. Id. "The application of this
standard of review varies depending on the burden of proof
applicable at trial and the error claimed on appeal to
challenge the judgment." Pearson v. Koster, 367
S.W.3d 36, 43 (Mo. banc 2012). In White v. Dir. of
Revenue, 321 S.W.3d 298 (Mo. banc 2010), our Supreme
When the burden of proof is placed on a party for a claim
that is denied, the trier of fact has the right to believe or
disbelieve that party's uncontradicted or uncontroverted
evidence. If the trier of fact does not believe the evidence
of the party bearing the burden, it properly can find for the
other party. Generally, the party ...